It has been
said that a right without a remedy is no right at all.It is important that citizens have a proper
way of enforcing their constitutional rights against the government in the
courts.Constitutional rights may be
asserted both offensively and defensively.The most common defensive use of constitutional rights is by criminal
defendants. Persons may also assert constitutional rights offensively, bringing
a civil suit against the government or government officials for a variety of
relief: declarative, injunctive and monetary.

One example
may be used to show the various ways that the same right may be asserted.Let us assume that the state of Maine has a
law making it illegal to carry certain symbols of hate (i.e., a swastika) in a
parade on a public street.Such a law
would be a violation of the First Amendment.The Ku Klux Klan announces that they will display swastikas in a march
in Portland, Maine the following week. The mayor announces that if they do,
they will be arrested.The Klan goes
ahead and holds the march and some members are arrested.When making the arrests, the police use
excessive force (a violation of the Fourth Amendment), and several of the
marchers are injured.

A.Declarative and Injunctive Relief

The first
question is whether the Ku Klux Klan could have done anything before the march
to prevent their arrests.The answer is
yes.They could have brought suit to
have the state law declared unconstitutional and also to have the city
authorities enjoined (prohibited by court order) from enforcing the statute
against them.Persons may bring suits
to have a law declared unconstitutional (declaratory judgement suit) if they
can establish standing, by showing
there is an actual dispute.

Persons may not merely choose a law
they think is unconstitutional and sue to have it declared
unconstitutional.They must first
establish that it is likely that they will violate the law and also likely that
they will be prosecuted for it.The Ku
Klux Klan could make the necessary showing in this case.

Plaintiffs, if they believe it
necessary, may also go further and ask for an injunction prohibiting the city
from enforcing the law, if it has been declared unconstitutional.In order to obtain an injunction they must
show that they will suffer irreparable harm.This means that they will suffer some harm that cannot be completely
remedied by money damages afterwards.Loss of their rights of free speech could be considered irreparable, and
they should be able to obtain an injunction in this case.If the injunction is issued and city
officials try to enforce the law, they may be found guilty of contempt of
court, which may result in fines or a jail sentence.

Such a declaratory or injunctive
lawsuit could be brought in either federal or state court.Most often, however, it would be brought in
federal court, with the hope that a federal judge, who was appointed by the
President, rather than by the state’s governor or elected by the public, would
be more willing to declare a state law unconstitutional.

B.Defending Criminal Charges

Now let’s assume that they did not
bring suit beforehand (which they are not required to do) and instead held the
march and were arrested.They may bring
their constitutional challenge defensively at their criminal trial. The state
judge presiding over the case would be obligated to hear the constitutional
claim, and if it were found valid, to dismiss the criminal charges.

Taking this route is riskier than
asking for an injunction because, if the statute is found to be constitutional,
the defendant may be held criminally liable and subject to prison or
fines.Also, in the criminal case, the
defendant’s constitutional claim will be heard, at least in the first instance,
by a state, rather than federal judge.A state judge, who might have to run for re-election, might be less
likely to hold a state statute unconstitutional and rule in favor of such an
unpopular defendant.

C.Suing for Damages

Ifmembers of the Ku Klux Klan were arrested or prevented from marching
because of the unconstitutional statute, they could also bring a suit for
damages against the city.They would do
so under a statute passed originally to protect African Americans after the
Civil War, 28 U.S.C.§ 1983 (commonly referred to as Section 1983).This statute allows a person whose
constitutional rights have been violated to sue the responsible public official
or governmental body for money damages.In this case, the Klan members could receive money damages from the
city, since the arrests were made by authority of the mayor and thus
constituted city policy.One problem
for the plaintiffs in this case is that the amount of damages might not be very
great.Although the right of free
speech may be very important, it does not have an intrinsic monetary
value.They would have to show some
additional, more concrete harm as a result of the arrests.

If, during the arrests, the police
used excessive force that caused them physical injury, they might be able to
sue the police officers individually for violation of their Fourth Amendment
right against unreasonable seizure.They would, of course, prefer to sue the city itself, because it would
probably be able to pay a larger damage award than the individual police
officers.A city, however, will not
normally be responsible for the constitutional violations of its employees,
unless they were acting in accordance with government policies.In this case, if the police officers were
acting in violation of city policy when they used too much force, then the city
could not be held liable.

There are several additional
impediments to recovering damages from certain defendants for constitutional
violations.Although damages may be
recovered against a city for enforcing an unconstitutional law or policy, the
same is not true for state governments.States are protected by the doctrine of sovereign immunity from having
to pay damages in most cases.They may
only be sued for injunctive relief to prohibit constitutional violations, not
afterwards for any damages caused.

There are also problems recovering
damages from individual government officials.All government officials receive some form of immunity from
damages.A few officials, most notably
judges, legislators and prosecutors, are completely immune from damages, no
matter how bad their behavior.For
example, a prosecutor who knowingly presents false testimony that wrongly
convicts an innocent defendant may not be sued for damages.This protection is given to them so they can
exercise their best judgment without fear of lawsuits.In some cases, however, this leaves injured
citizens with no legal recourse.These
officials may be subjected to criminal prosecution in cases of truly illegal
conduct, but this happens quite rarely and does not help the injured persons.

Most other government officials and
employees are given only partial, or qualified immunity.This means that they may be held liable for
damages for violating someone’s constitutional rights, but not in all
cases.The injured party must show that
the right that was violated was “clearly established” by the courts before the
official took the action.This rule is
imposed because it would not be fair to hold government employees personally
liable for their actions unless they could know, in advance, that the actions
were unconstitutional.In our case,
since the right not to be subjected to unreasonable force during an arrest has
been established by the courts in the past, damages could be awarded against
the individual officers.

D.Class Actions

The examples used so far
have all involved a small group of persons suing to enforce their
constitutional rights.Most lawsuits
are brought on behalf of one or several persons and the results affect only those
few people.There are times, however,
when unconstitutional government actions affect large numbers of persons.For example, if a state is running an
overcrowded, unsafe prison system, this may violate the Eighth Amendment’s ban
on “cruel and unusual punishment.”The
rights of thousands of prisoners may be affected.

In such a case, a small number of
prisoners may bring suit against the government on behalf of the larger class
of all “similarly situated” persons.Such lawsuits are known as class actions.Any relief obtained will be granted to all members of the class,
not just the few who brought the suit.Class action lawsuits are difficult and expensive to bring, but are
often the best way to make large, institutional changes.Lawsuits to integrate southern schools, to
force police departments to hire women and minorities, and to close down
antiquated mental hospitals are just a few examples of some important class
action lawsuits.

E.Attorneys’ Fees

It is sometimes very
difficult for persons to find attorneys willing to bring suits to enforce
constitutional rights.In the United
States, attorneys are paid by the party who hired them, either by the hour, or
with a percentage of any money recovered.This may not be sufficient to attract attorneys to take civil rights
cases.Consider the example of the suit
to reform an unconstitutional prison system.The prisoners will not have the money to pay their attorneys by the
hour, nor will there be any money awarded to share with their attorneys even if
they are successful with their case.Yet this will be a long, difficult, expensive, and unpopular case for
any attorney to take on.While there
may be a small group of attorneys who have dedicated their lives to helping
minorities, the poor, prisoners, and others needing legal representation, there
are not nearly enough.In many other
countries, the losing party in a lawsuit may be ordered to pay the winning
party’s attorneys’ fees.This is not
the normal rule in America, however.In
a typical lawsuit, each party must pay its own attorney, win or lose.

To help with this problem, Congress
passed the Attorneys’ Fees Awards Act.Under this Act, courts normally award attorneys’ fees, to be paid by the
defendant, when plaintiffs bring a successful suit against the government for
violating their constitutional rights.The purpose of the Attorneys’ Fees Award Act is to allow deserving
plaintiffs to attract competent lawyers to represent them in constitutional
litigation.It has been successful in
doing so, but has been criticized for encouraging frivolous litigation.This probably is not true, since the
attorney will only recover the fees if the lawsuit is, in the end, successful.